Working with your attorney when you are the defendant in California

Working with your attorney when you are the defendant in California is the topic of this blog post.

This blog post is part two of a two part series that discusses working with your attorney when you are responding to a complaint.

When you have been served with a complaint in California you generally have 30 calendar days to respond or the court can enter a default against you.  If you want to file a cross-complaint against the person or entity suing you that has to be filed and served with the court at the same time as your answer to the complaint or you will have waived your claim. If you have a claim against another third party that is based on the same set of facts and circumstances as the lawsuit that the plaintiff filed against you a cross-complaint must also be filed and served at the same time as your answer to the complaint or you may have waived your claim.

In order to allow your attorney enough time to prepare an adequate response to the complaint you should contact an attorney as soon as possible once you have been served with the summons and complaint. Due to the short time frame involved it is extremely important that you work closely with your attorney when responding to a complaint as your answer or response must be filed and served before the deadline to respond or the court may enter a default against you.

Your attorney will first want to know how and when you were served in order to determine if you were properly served or not. Assuming that you were properly served your attorney will then ask you to provide them with all of the information that you have regarding the case.

The best way to work with your attorney when responding to a complaint is to develop a roadmap that will allow both you and particularly your attorney to plan a litigation strategy.

If the facts in your case warrant it your attorney may suggest that you file a cross-complaint against the person or entity suing you in order to protect your rights and avoid forfeiture of any causes of action that you may have against them. Let your attorney know as soon as you contact them if you feel that you may have a claim against the plaintiff or another third party that involves the same set of facts and circumstances as the lawsuit that the plaintiff filed against you.

The roadmap that you and your attorney develop will be the basic starting point that will enable your attorney to plan out a comprehensive litigation strategy.

One of the most important aspects of any litigation strategy is the pretrial discovery phase.  This phase was discussed in part one of this series in more detail.  The pretrial discovery phase is when all parties to a lawsuit are permitted to serve the opposing party or parties with certain discovery requests in order to obtain as much information about the case as possible. The pretrial discovery phase is very useful in allowing a party to evaluate the strengths and weaknesses of their own case as well as that of the opposing party; it also allows all parties to better prepare for trial and to make a decision as to whether or not to enter into settlement negotiations.

The more information that you can provide to your attorney the better job that they can do to defend you.

You may think that a particular fact or document is not important enough to mention to your attorney but that can turn out to be a huge mistake. If you are in doubt it is much better to let your attorney know about it as the more information that you can give your attorney regarding your case the more information that they have to plan their litigation strategy.

Never withhold letting your attorney know about any negative facts regarding the case as that can backfire. Your attorney cannot prepare an adequate defense on your behalf unless they have all of the facts whether those facts are positive or negative.

Your attorney has been trained to review all of the information and documents that are provided to them in order to determine which information and documents are useful and which are not. Information that you thought was not important may in fact prove to be useful.

Your attorney will be using the information and documents that you have to determine which affirmative defenses that they will include in your answer. Affirmative defenses are a fact or facts which if they can be proven will defeat or at least mitigate your liability to the plaintiff. Common affirmative defenses include accord and satisfaction, estoppel and the statute of limitations.

For example the statute of limitations in California for the breach of a written contract is four (4) years from the date of the breach. This means that the plaintiff must file their complaint within four (4) years from the date of the breach of the contract or their complaint is barred by the affirmative defense of the statute of limitations and the plaintiff will not be entitled to any damages, providing that the defendant raises the affirmative defense of the statute of limitations.

Affirmative defenses must be raised in a timely manner or the court may decide that you have waived them. It is for this reason that working closely with your attorney is critical, particularly during the pretrial discovery phase.

During the pretrial discovery phase both parties will be serving each other with certain discovery requests.

For example the attorney for the plaintiff will most likely serve your attorney, on your behalf with discovery requests regarding the affirmative defenses that were included in your answer. They will likely ask you to provide all of the facts, individuals and documents that support your affirmative defenses. They may also ask you to admit or deny certain facts, or to admit that certain documents are genuine.  The attorney for the plaintiff may take your deposition as well as the depositions of other individuals that have personal knowledge of important facts regarding the case, or your affirmative defenses.

Your attorney will likely serve the attorney for the plaintiff with discovery requests regarding the information contained in their complaint. There is a good chance that your attorney will take the deposition of the plaintiff, and other individuals that have personal knowledge of important facts regarding their case.

One of the most important things that you can do to assist your attorney is to prepare an accurate summary of your situation that includes all important facts and dates. It is also helpful if you can provide a timeline for your attorney as well.

Staying in close communication with your attorney during the litigation is important so that the attorney can keep you advised of any developments in your case. If you come across any information that you were not previously aware of, or may have forgotten let your attorney know as soon as possible.

Working closely with your attorney in responding to a complaint will pay dividends as that will allow them to present the most effective defense possible. Depending on the unique circumstances of your situation your attorney may be able to achieve a complete victory for you at the trial, or negotiate a fair settlement.

Schedule a free consultation today with Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

 

 

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Author: nathanmubasher

Attorney Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

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